EXHIBIT 10.28
FEC Contract No. 98-0511
NON-EXCLUSIVE ENTERPRISE LICENSE AGREEMENT
THIS NON-EXCLUSIVE ENTERPRISE LICENSE AGREEMENT (the "License
Agreement") is entered into as of the ____ day of December, 1997 (the "Effective
Date") by and BETWEEN QUALIX GROUP, INC. (the "Licensor" or "Qualix") and
FEDERAL EXPRESS CORPORATION (which for purposes of this License Agreement shall
mean Federal Express Corporation and its majority -owned subsidiaries and
affiliates worldwide) (the "Licensee" or "Customer") who agree as follows:
RECITALS
WHEREAS, Licensee has previously licensed (the "Existing Licenses")
certain computer software (the "Software) from Licensor for use in its business;
WHEREAS, Licensee is desirous of obtaining a perpetual, non-exclusive,
non-transferable, enterprise-wide license to enable it to use the Software
within its business without restrictions as to the sites, number of copies
thereof, or number of users thereof;
WHEREAS, Licensor is willing to grant an enterprise license to Licensee
subject to the terms and conditions of this License Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which the parties acknowledge, the parties agree as follows:
GRANT OF NON-EXCLUSIVE ENTERPRISE LICENSE
Grant of License. Subject to the terms and conditions of this License Agreement,
Licensor hereby grants to Licensee a perpetual, non-exclusive, non-transferable
(except as otherwise provided in Section 8.1 hereof), enterprise-wide right and
license to install, use, copy, and distribute internally the Licensed Materials,
as defined below, in machine-readable form (the "Enterprise License"). Licensee
may install the Licensed Materials in any quantity on any number of computers
(the "Licensed Computers") and/or at any number of locations throughout the
world (the "Licensed Sites"), without restriction on the number of users or
concurrent users. The Licensed Computers may consist of any of the computer
platforms with respect to which Licensor makes the Software generally
commercially available. Upon request by Licensee, Licensor shall promptly inform
Licensee of any additional platforms which have been added by Licensor to its
standard commercial list of available platforms on which any of the Software may
be run. Licensee shall have no other license rights with respect to the Licensed
Materials than those expressly provided in this License Agreement. Ownership.
All patent rights, copyright rights, trade secret rights, trademark rights, and
other proprietary rights in the Licensor's proprietary software and related
materials delivered under this License Agreement, as more particularly specified
in Exhibit A hereto (the "Licensed Materials") are and shall remain the sole and
exclusive property of Licensor. Nothing herein shall be construed to grant to
Licensee any ownership rights in the Licensed Materials. Any rights not
expressly granted to Licensee hereunder are retained by Licensor. Deliverables.
Licensor shall deliver the Licensed Materials to Licensee, in reproducible
master format, during the term hereof as requested from time to time by
Licensee. Licensee has evaluated the version of the Licensed Materials currently
(as of the Effective Date) on site at Licensee's premises and hereby accepts
said version. Proprietary Notices and Records. Licensee shall retain, and in no
case delete, any and all of Licensor's proprietary notices in the Licensed
Materials.
PAYMENT TERMS
License Fees. The total license fee for the Enterprise License shall be in the
amount of [*] in the aggregate, of which Licensor hereby acknowledges that [*]
has already been paid by Licensee to Licensor prior to the Effective Date
hereof. The remaining [*] shall be payable in two installments. The first of
said installments, which shall be in the amount of [*], shall be payable within
thirty (30) days following the execution of this License Agreement by the
parties and Licensee's receipt of Licensor's invoice therefor. The second and
final of said installments, which shall be in the final remaining amount of [*],
shall be payable within thirty (30) days following Licensee's receipt of
Licensor's invoice for such final amount, provided that Licensor does not sent
its invoice therefor to Licensee prior to July 1, 1998. Support and Maintenance
Fee. The fee for the Support and Maintenance Services described in Exhibit B for
a period of one (1) year commencing as of the Effective Date shall be in the
total amount of [*] and shall be payable within thirty (30) days following the
execution of this License Agreement by the parties and Licensee's receipt of
Licensor's invoice therefor. On-Site Engineer Services Fee. The fee for the
On-Site Engineer Services (hereinafter described in Section 6 hereof) for one
(1) year shall be in the amount of [*], which amount shall be payable within
thirty (30) days following the Start Date (as defined in Section 6 hereof) of
the on-site engineer at Licensee's facility.
WARRANTIES, INDEMNIFICATION AND LIMITED LIABILITY
Warrant of Title. Licensor warrants that it has all right, title, and interest
in all copyrights and all other proprietary rights in the Licensed Materials and
that it has the right to grant the license granted hereunder. Indemnification.
Licensor shall, at Licensor's expense, defend, indemnify and hold harmless
Licensee from and against any and all damages, liabilities, and costs including
attorney's fees arising from or relating to any breach of the foregoing Warranty
of Title or any claim based on an allegation that any of the Licensed Materials,
or the use by, or license to, Licensee of any of the Licensed Materials
infringes any patent, copyright or other proprietary right. Licensor shall not
be responsible for any compromise or other settlement made by Licensee without
Licensor's written consent. Licensor's obligation to indemnify Licensee shall be
conditioned upon Licensee's prompt notification to Licensor of any such claim,
and upon Licensee's cooperation with Licensor, at Licensor's expense, in the
defense of any such claim. Millennium Compliance. Licensor hereby warrants that
the Licensed Materials are "Millennium Compliant" as defined in Exhibit D. This
warranty shall be perpetual and shall survive any other expiration of warranty
period or other termination of this License Agreement. Disclaimer. LICENSOR
DISCLAIMS ALL EXPRESS WARRANTIES EXCEPT AS SET FORTH HEREIN, AND DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. LICENSEE UNDERSTANDS
AND AGREES THAT THE LICENSED MATERIALS ARE BEING DELIVERED "AS IS." Limitation
of Liability. LICENSOR WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY
CLAIMS FOR LOST DATA, LOST PROFITS, LOSS OF USE, OR INTERRUPTION OF BUSINESS,
AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE AND WHETHER OR NOT LICENSOR
HAS BEEN APPRISED OF THE LIKELIHOOD OF THE SAME. IN NO EVENT SHALL LICENSOR BE
LIABLE FOR ANY DAMAGES EXCEEDING THE AMOUNTS PAID BY LICENSEE TO LICENSOR UNDER
THIS LICENSE AGREEMENT. The foregoing limitations of liability shall not apply
to personal injury or tangible property damage caused by Licensor's negligence
or to Licensor's obligations under Sections 3.2 or 4 hereof.
CONFIDENTIALITY
Confidential Information. The use and disclosure by one party of the other
party's confidential and proprietary information shall be governed by and
subject to the provisions of that certain Mutual Nondisclosure Agreement between
the parties dated November 26, 1997 (the "MNDA"). Public Announcements. Licensor
shall in each instance obtain the prior written approval of Licensee concerning
exact text and timing of news releases, articles, brochures, advertisements,
prepared speeches and other information releases concerning this specific
License Agreement, which approval shall not be unreasonably withheld.
SUPPORT AND MAINTENANCE
Licensor shall provide the Support and Maintenance Services described in Exhibit
B to Licensee for a period of one (1) year from the Effective Date of this
License Agreement, provided the fee for Support and Maintenance Services as set
forth form in Section 2.2 hereof is paid to Licensor by Licensee in accordance
with the terms thereof. Thereafter, Support and Maintenance Services may be
purchased by Licensee from Licensor on an annual basis via issuance by Licensee
of its standard purchase order therefor. Annual support fees shall not increase
in any one (1) year by more five percent (5%) of the fee in the preceding year
or the Consumer Price Index whichever is less. The annual fee for any renewal
Support and Maintenance Services period shall be payable by Licensee within
thirty (30) days following the commencement of such renewal period and receipt
by Licensee of Licensor's invoice therefor.
ON-SITE ENGINEERING
On-Site Engineer Services. Licensor shall provide a full-time, on-site Qualix
engineer to Licensee for a period of one (1) year to perform the On-Site
Engineer Services described in Exhibit E, provided the fee for the On-Site
Engineer Services as set forth in Section 2.3 hereof is paid to Licensor by
Licensee in accordance with the terms thereof. The Qualix engineer shall be an
individual deemed competent in UNIX system administration. The one-year period
shall start on a date to be mutually determined by Licensor and Licensee (the
"Start Date"), but in no event shall such Start Date exceed July 1, 1998. All
travel expenses and daily meals incurred by the Qualix engineer in connection
with his/her performance of services for Licensee while on travel from
Licensee's initial designated domicile site, shall be the responsibility of
Licensee, provided that the Qualix engineer adheres to Licensee's stated travel
policies regarding said expenses (see Exhibit C attached hereto), as modified
from time to time. The Qualix engineer will travel in accordance with Licensee's
management's reasonable requirements. Licensor shall invoice Licensee at the end
of each month for any such applicable reimbursables incurred during such month.
Such invoices shall be payable by Licensee within thirty (30) days following
Licensee's receipt thereof. General Indemnity. Licensor hereby agrees to
indemnify and hold harmless Licensee, its officers, agents and employees from
any and all liabilities, damages, losses, expenses, demands, suits, or
judgments, including all attorneys' fees, costs, and expenses incidental
thereto, for death of or injuries to any person and for the loss of, damage to
or destruction of any property in any manner arising out of the negligent or
intentional acts or omissions of Licensor, its agents, employees, or
subcontractors. Licensor shall also indemnify Licensee against any liability or
payment in connection with federal, state and local taxes or contributions
imposed upon or required of Licensee under unemployment insurance, social
security, income tax and workers' compensation statutes with respect to
Licensor's services hereunder.
TERM AND TERMINATION
Term. This License Agreement shall become effective as of the Effective Date
and, unless otherwise terminated as provided herein, shall terminate November
30, 2002, except for fully paid-up licenses which shall continue in perpetuity
with full force and effect, unless otherwise terminated as provided herein.
Default. It shall be a default hereunder on the part of a party hereto if (i)
such party shall fail to perform when due any of its obligations under this
License Agreement and such failure or breach is not remedied within thirty (30)
days after receipt of written notice of such default from the other party, or
(ii) a party hereto becomes insolvent or makes an assignment for the benefit of
creditors or ceases to do business or if any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any bankruptcy or other law for the relief of debtors is instituted by or
against such party. In the event of any such default by Licensee, Licensor shall
have the right to terminate the license under this Agreement to the Licensed
Materials and shall be entitled to exercise any and all other rights and
remedies as shall be available to it at law or in equity. In the event of any
such default by Licensor, Licensee shall have the right to terminate this
License Agreement and shall be entitled to exercise any and all rights and
remedies as shall be available to it at law or in equity. Either party's
remedies may be exercised concurrently or separately, and the exercise of any
one remedy shall not be deemed an election of such remedy or to preclude the
exercise of any other remedy. In addition to the above remedies, if this License
Agreement is terminated for default of Licensor, then Licensor shall refund the
unused (pro rata) portion of any applicable Support and Maintenance Services
fees. Effect of Termination by Licensor due to Material Breach. Upon termination
of this License Agreement due to material breach, Licensee shall return to
Licensor the Licensed Materials then in possession of Licensee and all versions
thereof, together with all copies thereof and Licensee shall purge all copies
from all Licensed Computers at all Licensed Sites and from all storage devices
or media, and shall certify to Licensor in writing that it has done so. The
foregoing shall not apply with respect to the copies of the Licensed Materials
previously licensed by Licensee under the Existing Licenses, which copies shall
be subject to the provisions of said Existing Licenses in the event of such
termination of this License Agreement.
GENERAL
Assignment. This License Agreement may not be assigned by either party except
upon reasonable written notice to and consent of the other party, which consent
will not be unreasonably withheld; provided, however, Licensee may assign its
rights and obligations under this License Agreement to any present or future
parent corporation or sister corporations upon written notice to Licensor. In
the event of any merger or sale of substantially all of the business assets of
Licensor, Licensor shall notify Licensee in writing of such event promptly
following same, and Licensee shall thereupon have the right, at its option, to
terminate all or a portion of this Agreement, and if Licensee so terminates,
Licensee shall have the right to receive a pro rata refund of any Support and
Maintenance Service fees only. Severability. If any provision of this License
Agreement shall be found to be unenforceable then, notwithstanding that term,
all other terms shall remain in full force and effect. Governing Law, Venue,
Jurisdiction. This License Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. Attorneys' Fees. The
prevailing party in any dispute arising out of, related or connected to this
License Agreement shall be entitled to reasonable attorney's and expert fees and
costs. Taxes. (a) In addition to any other payments due hereunder, Licensee
shall be responsible for all sales and other taxes, state or federal (other than
any income taxes owed by Licensor or any taxes imposed upon Licensor for the
privilege of doing business or exercising a franchise), that become due because
of the transaction contemplated by this License Agreement.
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(b) Licensor shall invoice Licensee for the sales or use Taxes it
is responsible for collecting and paying under this Agreement by separately
stating the amount and percent of such Taxes in each invoice for fees presented
to Licensee for payment (or the final invoice, if agreed to by Licensor and
Licensee). Licensee shall pay such Taxes to Licensor within thirty (30) days
following Licensee's receipt of Licensor's invoice therefor, unless (i) the
validity or application of the Taxes is contested by Licensee in good faith, or
(ii) Licensee is permitted to make a direct payment of the Taxes to the taxing
authority, and Licensee notifies Licensor of its intention to do so.
(c) Licensor shall, upon Licensee's written request and at
Licensee's expense, assist Licensee in contesting the validity or application of
any Taxes. Licensor agrees that if it receives a refund of all or part of any
Taxes (including interest and penalties) previously paid by Licensee, it shall
promptly remit the refund to Licensee.
Survivability. The provisions of subsections 1.2, 1.4, and 6.2 and Sections 3
(except subsection 3.3) and 4 shall remain in full force and effect following
the effective date of termination of this License Agreement. Entire Agreement.
This License Agreement, together with the MNDA, constitute the entire agreement
among the parties relating to the subject matter hereof and may only be modified
by a writing signed by both parties. No terms or conditions of any purchase
order or other order document shall amend, modify, change, or add to this
License Agreement unless such term or condition is expressly made part of this
License Agreement by written amendment. Escrow Agreement. Contemporaneously with
the execution of this License Agreement, Licensee and Licensor shall enter into
a Source Code Escrow Agreement (the "Escrow Agreement") in substantially the
form attached hereto as Exhibit F, pursuant to which Licensor shall deposit with
the escrow agent named therein the source code for the Licensed Materials. Said
source code to be delivered by Licensor shall consist of all of the source code
of or relating to the Licensed Materials, including, without limitation, all
architectural components and elements of the source code necessary to provide
Licensee with a complete technical executable compilation thereof. Licensee
shall have the right, at any time, to direct the escrow agent or an independent
third party under nondisclosure obligations to audit the source code so
deposited with the escrow agent to verify Licensor's compliance with this
Section and to produce a file directory listing for each of the deposit
materials. Licensor shall, at its sole expense, remedy within fifteen (15) days
any verification issues identified by such audit. In the event Licensor fails to
deliver the source code for the Licensed Materials and all future releases
thereof to the escrow agent named in the Escrow Agreement by the delivery dates
required in this License Agreement or in said Escrow Agreement, Licensee shall
be entitled to specific performance of Licensor's obligation to so deliver the
source code to the escrow agent. In the event Licensee seeks to enforce such
specific performance and prevails, Licensor shall be responsible for all costs
and expenses, including attorney's fees, incurred by Licensee in connection
therewith. Notices. All notices hereunder shall be in writing and shall be
deemed to have been given and received when delivered in person or upon receipt
(or refusal) when mailed by United States registered or certified mail, return
receipt requested, postage prepaid, or by Federal Express service, as follows:
If to Licensee:
Federal Express Corporation
0000 Xxxxxxx Xxxx., Module X-0
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxx
If to Licensor:
Qualix Group, Inc.
0000 Xxxxx Xxxxxxx Xx., Xxxxx 000
Xxx Xxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Compliance with Laws. Licensor agrees that it will comply with all applicable
federal, state, and local laws, regulations, and codes in the performance of
this License Agreement. To the extent applicable to Licensor, it agrees to
comply with the affirmative action requirements applicable to contracts with
government contractors, as set forth in Title 41 of the Code of Federal
Regulations and incorporated into this License Agreement by reference.
Independent Contractor Relationship. The parties intend that an independent
contractor relationship will be created under this License Agreement. Nothing
contained herein shall be construed as creating a joint venture, partnership or
employment relationship between the parties, nor shall either party have the
right, power or authority to create any obligation or duty, express or implied,
on behalf of the other party. Additionally, Licensor shall be solely responsible
for any liability resulting from the acts, omissions or negligence of Licensor
or its agents, employees or subcontractors arising out of or occurring in the
course of any services hereunder. Insurance. Licensor will, at its own expense,
during the term of this License Agreement, maintain adequate coverage to insure
its liabilities under this License Agreement, including but not limited to,
comprehensive general liability, errors and omissions, and fire and theft with
extended coverage.
"Licensor": "Licensee":
QUALIX GROUP, INC. FEDERAL EXPRESS CORPORATION
By: By:
Name/Title: Name/Title:
E-10
EXHIBIT A
SPECIFICATION OF LICENSED MATERIALS
Licensor licenses to Licensee, under the terms and conditions set forth
in the Non-exclusive Enterprise License Agreement, the following materials:
QUALIX HA+ server software and related modules for the SUN Solaris, HP-UX, and
IBM AIX platforms; and all related documents and manuals.
EXHIBIT B
Qualix Group, Inc.
Support and Maintenance Services
1.0 DEFINITIONS
"Operating System" means currently supported operating system by Qualix.
"Product" means the binary executables and documentation for the Licensed
Materials. "Documentation" means any Qualix product literature (provided in
electronic and printed form), and descriptions relating to the Product (and any
derivative versions of documentation created by Customer). "Release" means the
addition by Qualix of a previously unincluded function or feature to the Product
(designed sequentially by Qualix as "Release 1.0", "Release 2.0", etc.).
"Version" means the addition by Qualix of a function or feature of the Product,
or any change made by Qualix to the Product which upgrades its performance,
including all Patches and Bug Fixes made to the Product since the last previous
Version (designated sequentially by Qualix as "Version 1.1", "Version 1.2",
etc.). "Patches and Bug Fixes" means any minor change made by Qualix to the
Product, including changes made for purposes of maintaining Operating System and
data base system compatibility, error correction, workarounds and patches
(designated sequentially by Qualix as "Version 1.1.1", "Version 1.1.2", etc.).
"Reproducible" means a repeatable test case which isolates a particular behavior
on the Operating System. 2.0 CUSTOMER SUPPORT SERVICES
Customer Support Service. Support for the Product and terms specified in this
product will consist of technical assistance provided by Qualix support
engineers to Customer for Customer's support of Product, for the term of the
License Agreement. Qualix agrees to provide such support to Customer's sites for
the terms stated above. For the severity of Product defect(s) described in
Section 2.2 below, such support will consist of the services described in
Section 2.3 below. Severity Level Designation. Problems, defects and
malfunctions in a Qualix Product will be categorized as follows: X-0 (x)
Xxxxxxxx Xxxxx 0. Severity Level 1 represents a mutually reproducible emergency
condition which makes the use or continued use of any one or more functions
impossible. The condition requires an immediate solution that is not already
available. Response time: 2 hours from Customer's initial call. (e) Severity
Xxxxx 0. Xxxxxxxx Xxxxx 0 represents a mutually reproducible condition. The
software may be causing system failures or destroying data and the customer is
unable to perform work-around and cannot proceed with the intended use of the
software. Response time: 2 hours from Customer's initial call. (f) Severity
Level 3. Severity Level 3 represents a mutually reproducible limited problem
condition that is not critical in that no loss of data occurs and which may be
circumvented or avoided on a temporary basis by the Customer. Response time: 5
to 10 hours from Customer's initial call. (g) Severity Level 4. Severity Level 4
represents minor problem conditions or documentation errors which are easily
avoided or circumvented by the Customer. Additional requests for new feature
suggestions, which are defined as new functionality in existing Product are also
classified as Severity Level 4. Response time: 24 hours from Customer's initial
call.
Customer Support Services. Qualix shall provide the following Customer Support
and Maintenance Services from a central site selected by Qualix: (h) Telephone,
E-Mail and Fax Support. Qualix will maintain and make available to Customer
telephone, UNIX electronic mail and fax support. Qualix's telephone support
service center will be staffed by properly trained Qualix personnel during
Qualix's support hours, which are between 7:00 a.m. and 6:00 p.m. Pacific
Standard Time, Monday through Friday (excluding holidays listed below). Qualix
will use commercially reasonable efforts to arrange for a qualified Qualix
support engineer or support manager to return calls to Customer within two (2)
Qualix's support hours of Customer's first call to Qualix. (i) Support Remedies.
From time of receipt during Qualix's support hours of a documented report from
Customer of a Product error, defect or malfunction that is reproducible by
Qualix, Qualix will respond to Customer by telephone, electronic mail or fax as
appropriate within the required responses times set forth in Section 2.2 above,
depending on the severity of the problem. High severity problems will be given
priority over fixes for low severity problems. Upon receipt of a report from
Customer of a Severity Level 1 or 2 problem or condition, Qualix shall
immediately and diligently commence resolution of the problem. (j) Versions. So
long as Customer is in compliance with its obligations hereunder, Customer will
be provided with Versions, Patches and Bug Fixes for the service term of this
Agreement. (k) Premium Customer Support Services. This service includes the
Services provided in subsections 2.3(a), (b) and (c) above. In addition,
Severity Level 1 and 2 calls as defined in Section 2.2 are accessed at any hour
of the day, seven days a week outside the hours identified above via an
automated paging system and shall be responded to by Qualix within the required
response times set forth in said Section 2.2.
Annual Support Fees. For Customer Support and Maintenance Services provided by
Qualix to Customer described in this Exhibit B, including without limitation, in
Section 2.3 above, Customer will pay to Qualix, in full, the then-applicable
annual support fees as described in Sections 2.2 and 5 of the License Agreement.
Qualix will provide to Customer written notice of renewal forty-five (45) days
prior to renewal. Support and Maintenance Services not renewed within 30 days
after the expiration date of the then-current annual period will be subject to a
reinstatement charge, consisting of the then-current renewal year's support fee
and the prorated fee for the lapsed period calculated at 50% of the uncollected
support fees for the lapsed period.
If Customer is at any time not on support and requires new Versions,
the following update costs will apply: 50% of product list price if new Version
is requested in less than 6 months after the expiration of the then most recent
annual Support and Maintenance Services period; 75% of product list price if new
Version is requested in more than 6 months, but less than 12 months after the
expiration of the then most recent annual Support and Maintenance Services
period; 100% of product list price if new Version is requested in more than 12
months after the expiration of the then most recent annual Support and
Maintenance Services period.
3.0 OTHER TERMS OF SERVICE SUPPORT
Customer's Obligations. Customers will use reasonable efforts to fully document
and isolate reported problems in the Product, and to eliminate other causes of
the problem (such as application software errors, equipment incompatibility or
Customer End-User modifications). Final Patch Fixes. Upon correcting an error,
Qualix will internally conduct tests on the corrected Product. Binary forms of
the Product, including the final fix for the reported error, will be delivered
by Qualix to Customer when complete. For purposes of this Section, a "final fix"
will consist of the final form of the fix for a reported error in a new patch or
Version of the Product, including Documentation. Qualix shall use commercially
reasonable efforts to provide final fixes to reported errors within the
following time periods based upon the applicable level of severity of the
problem: Severity Xxxxx 0 - 00 xxxx; Xxxxxxxx Xxxxx 0 - 00 days; Severity Level
3 - with the next commercially available Release or Version; Severity Level 4 -
with respect to minor problems or documentation errors, with the next Release or
Version as commercially practicable. Prior Release Support. Qualix will provide
hotline phone support and Patches and Bug Fixes for the prior Version of the
Product for twelve (12) months after a new Version of the Product becomes
available on Qualix's Operating System platform. B-3
Exhibit C
EXCEPTIONS TO FEDEX TRAVEL POLICY (PROFIT SEC.5)
FOR CONSULTANTS/CONTRACTORS
FEDEX PROJECT MANAGEMENT (DIRECTOR LEVEL OR 1) May designate an em-
ABOVE) ployee within the organ-
ization as the Consultant
Travel Coordinator(CTC)who
will act as liaison be-
tween consultant and corp-
orate travel services. The
CTC will have authority to
approve travel requests of
consultants.
2) If desired, may provide
traveler profiles for
consultant's employees in
order to enroll
consultant's employees in
the "pre-approved" travel
file.
3) If possible, provide
Corporate Travel Services
with a list of consultants
expected to travel.
CORPORATE TRAVEL SERVICES 1) Once approved, establishes
consultant's travel pro-
files in pre-approved
travel file.
2) Provides a regular report
to FedEx Project
Management of consultant's
travel activity.
3) Processes travel requests
and distributes necessary
documents (tickets,
itineraries, etc.).
CONSULTANT 1) If requested, completes
FedEx traveler profile
(either printed form or
EMAIL).
2) If approved by FedEx
Project Management (or
CTC), requests airline and
lodging by either
completing a Domestic
Business Travel Request
form or through EMAIL
Bulletin Board
CORPTRAV-FORMS. The
consultant company name
must be noted in the
employee number field.
Travel requests must
indicate preferred
delivery:
overnight letter toconsul-
tant
overnight letter to CTC
pickup at Corporate Travel
0000 Xxxxxxxx Xx. Xxx. 000
Xxxxxxx, XX 00000
INFORMATION AND TIPS
If traveling outside of Memphis, refer to Email Bulletin Board
CORPTRAV-DOM-HOTELS for preferred lodging.
Consultant's travel must comply with FedEx travel Policy (PROFIT Section
5). As a result, requests may be changed to comply. Documents should be
reviewed upon receipt.
Important resources
Domestic Business Travel Request Form CORPTRAV-FORMS
FedEx Preferred Domestic Hotels CORPTRAV-DOM-HOTELS
Corporate Travel Information 000-000-0000
Corporate Travel Fax 000-000-0000
Generally, the Business Travel and Entertainment policies of FedEx as
issued in the FedEx Finance Policies and Procedures (US) manual will govern
consultant/contractor travel. Below are variations from standard policies
in order to accommodate the special requirements of consultant/contractor
travel.
AIR TRAVEL
FIRST CLASS TRAVEL - Determined by Corporate Travel Services based on parity
between consultant's position and like positions within FedEx.
GROUND TRANSPORTATION -- Due to insurance considerations, all rental cars must
be contracted for by the Consultant directly with the rental agency.
HOTEL/LODGING
HOTELS - all lodging must be obtained through Corporate Travel Services in order
to secure FedEx negotiated rates.
APARTMENTS - On long-term assignments. apartments can be obtained in accordance
with the following:
Seniors and staff employees must share a two-bedroom
apartment. Associate partners and managers may obtain a
one-bedroom apartment.
Maximum reimbursable amount (which includes furnishings,
utilities, telephone service, cable service, cleaning and
maintenance).
Memphis one bedroom - $1,300 monthly, two bedroom -
$1,600 monthly Orlando one bedroom - $1,400 monthly,
two bedroom - $1,650 monthly Other Cities -
determined by Corporate Travel Services on a case by
case
basis
MEALS/INCIDENTALS
PER DIEM -- In lieu of specific reimbursement for meals and incidentals, the
following daily per diem is provided:
Apartment domiciled - $21 per day
Hotel domiciled - $26 per day (also for travel days to/from
locations other than assigned location)
The per diem allowance will be prorated for days of travel
to/from assigned out-of-town location based on amount of time
spent away from the individual's domicile. This proration is
determined in 4 six hour increments.
TEMPORARY ADVANCES - Will not be provided to consultants. CHARGE CARDS - Will
not be provided to consultants.
EXHIBIT D
Millennium Compliance
(l) For the purposes of this Agreement "Millennium Compliant" means:
(m) the functions, calculations and other computing processes of each of
the Licensed Materials (collectively, the "Processes") perform in a
consistent manner regardless of the date in time on which the Processes
are actually performed and regardless of the date input to the Licensed
Materials, whether before, on or after January 1, 2000 and whether or not
the dates are affected by leap years (collectively, the "Millennial
Dates");
(n) the Licensed Materials accept, calculate, compute, compare, sort,
extract, sequence, and otherwise process date inputs and date values
(whether forward or backward), and return, generate, process and display
date output and date values, accurately and in a consistent manner
(without errors or omissions), regardless of the Millennial Dates used;
(o) the Licensed Materials will function without interruptions, errors or
omissions caused by the date in time on which the Processes are actually
performed or by the Millennial Dates input to the Licensed Materials;
(p) the Licensed Materials accept and respond to two-digit year-date
input in a manner that resolves any ambiguities as to the century in a
defined, predetermined, and appropriate manner; and
(q) the Licensed Materials store, process and display date information
(including, without limitation, in user interfaces and data fields) in
ways that are unambiguous as to the determination of the century in a
defined, predetermined and appropriate manner.
(r) Licensor represents and warrants that the Licensed Materials have been
tested by Licensor to determine that such Licensed Materials are Millennium
Compliant. Upon Licensee's written request, Licensor shall deliver to Licensee
documentation on the method of date manipulation, format of date elements,
changes affecting previous coding practices, examples of current coding
practices, test plans and the results of such tests with respect to the Licensed
Materials, as well as any other related information reasonably requested by
Licensee. Upon Licensee's reasonable written request, Licensor agrees to
participate in additional tests of the Licensed Materials, at no charge to
Licensee, to determine Millennium Compliance. Licensor shall notify Licensee
immediately of the results of any tests or any claim or other information that
indicates that any of the Licensed Materials are not Millennium Compliant.
(s) In the event that any of the Licensed Materials are not in conformity to the
warranties set forth in subsection (a) above, Licensor shall, within thirty (30)
days after notification or discovery thereof and at no expense to Licensee,
either (i) remedy such non-conformity or replace such non-conforming Licensed
Materials with equivalent conforming Licensed Materials; or (ii) if such remedy
is impossible or commercially impracticable, refund to Licensee on a depreciated
basis all fees paid by Licensee for the non-conforming Licensed Materials, plus
the unused portion of any maintenance fees paid by Licensee for such
non-conforming Licensed Materials.
EXHIBIT E
On-Site Engineer Services
The Qualix engineer shall be initially assigned to Licensee's facility in
Orlando, FL, and shall perform the following services: installation,
configuration and support of the Licensed Materials within Licensee's
environment and such other services as may be reasonably requested by Licensee
from time to time in connection with the Licensed Materials.
Notwithstanding anything to the contrary contained in the License Agreement, in
the event the Qualix on-site engineer's performance of services hereunder does
not meet Licensee's requirements as determined by Licensee in its reasonable
discretion, Licensee shall, in addition to any other remedies available to it,
be entitled to terminate the On-Site Engineer Services and receive a refund of
the On-Site Engineer Services fees paid by Licensee, such refund to be pro rated
over a one-year basis from the date of termination.
Exhibit F
STANDARD ESCROW AGREEMENT
BETWEEN
PRODUCER, FORT XXXX AND FEDERAL EXPRESS
This escrow agreement is intended for use by a Producer (Licensor),
Federal Express (End User) and Fort Xxxx Escrow Services, Inc. Any number of
escrow products may be stored in escrow for the Federal Express under the terms
of this agreement. All parties sign the contract.
Software Escrow Agreement
This Escrow Agreement ("Agreement") is made as of this ____ day of
_________, 1996, by and between Qualix Group, Inc. ("Producer"), Fort Xxxx
Escrow Services, Inc. ("Fort Xxxx") and Federal Express Corporation ("Federal
Express").
Preliminary Statement. Producer shall deliver to Fort Xxxx a sealed
package containing magnetic tapes, disks, disk packs, or other forms of media,
in machine readable form, and the written documentation prepared in connection
therewith, and any subsequent updates or changes thereto (the "Deposit
Materials") for the computer software products (the "System(s)"), all as
identified from time to time on Exhibit B hereto. Producer desires Fort Xxxx to
hold the Deposit Materials, and, only upon certain events, deliver the Deposit
Materials (or a copy thereof) to Federal Express, in accordance with the terms
hereof.
Now, therefore, in consideration of the foregoing, of the mutual
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
Delivery by Producer and Acceptance of Deposit.
(t) Producer shall be solely responsible for delivering to Fort Xxxx
the Deposit Materials within thirty (30) days of execution of this Agreement.
Such Deposit Materials shall be identified on Exhibit B of this Agreement, and
Producer shall submit the Deposit Materials in accordance with the requirements
of Exhibit D. Exhibit B is to be prepared and signed by Producer and Federal
Express. Fort Xxxx shall hold the Deposit Materials in accordance with the terms
hereof. When Fort Xxxx receives the Deposit Materials and the Exhibit B, Fort
Xxxx will conduct a deposit inspection by visually matching the labeling of the
tangible media containing the Deposit Materials to the item descriptions and
quantity listed on the Exhibit B. In addition to the deposit inspection, Federal
Express may elect to cause a verification of the Deposit Materials in accordance
with Paragraph 10 below. Fort Xxxx shall have no further obligation to verify
the completeness or accuracy of the Deposit Materials.
(u) At completion of the deposit inspection, if Fort Xxxx determines
that the labeling of the tangible media matches the item descriptions and
quantity on Exhibit B, Fort Xxxx will sign the Exhibit B and mail a copy thereof
to Producer and Federal Express. If Fort Xxxx determines the labeling does not
match the item descriptions or quantity on the Exhibit B, Fort Xxxx will (i)
note the discrepancies in writing on the Exhibit B; (ii) sign the Exhibit B with
the exceptions noted; and (iii) provide a copy of the Exhibit B to Producer and
Federal Express. Fort Xxxx'x acceptance of the deposit occurs upon the signing
of the Exhibit B by Fort Xxxx. Delivery of the signed Exhibit B to Federal
Express is Federal Express's notice that the Deposit Materials have been
received and accepted by Fort Xxxx.
Duplication; Updates.
(v) Fort Xxxx may duplicate the Deposit Materials by any means but only
for purposes of complying with the terms and provisions of this Agreement,
provided that Federal Express shall bear the expense of duplication.
Alternatively, Fort Xxxx, by notice to Producer, may require Producer to
reasonably promptly duplicate the Deposit Materials.
(w) Producer shall deposit with Fort Xxxx any modifications, updates,
new releases or documentation related to the Deposit Materials and required by
any agreement between Producer and Federal Express by delivering to Fort Xxxx an
updated version of the Deposit Materials ("Additional Deposit"), together with
an updated Exhibit B identifying the Additional Deposit, no later than sixty
(60) days after the modifications, updates, new releases and documentation are
available for commercial distribution by Producer. Upon receipt of the
Additional Deposit, Fort Xxxx will repeat the deposit inspection procedures
outlined in Paragraph 1 above. Fort Xxxx shall have no further obligation to
verify the accuracy or completeness of any Additional Deposit or to verify that
any Additional Deposit is in fact a copy of the Deposit Materials or any
modification, update, or new release thereof.
Notification of Deposits. Simultaneous with the delivery to Fort
Xxxx of the Deposit Materials or any Additional Deposit, as the case may
be, Producer shall deliver to Fort Xxxx and to Federal Express a written
statement specifically identifying all items deposited and stating that
the Deposit Materials or any Additional Deposit, as the case may be, so
deposited have been inspected by Producer and are complete and accurate.
The Deposit Materials and any Additional Deposit are hereinafter
collectively referred to as the "Deposit Materials."
Delivery by Fort Xxxx.
Delivery by Fort Xxxx to Federal Express. Fort Xxxx shall deliver the
Deposit Materials, or a copy thereof, to Federal Express only upon the
occurrence of one or more of the following release conditions ("Release
Conditions"):
(x) Producer notifies Fort Xxxx to effect such delivery to Federal
Express at a specific address, the notification being accompanied by a check
payable to Fort Xxxx in the amount of one hundred dollars ($100.00); or
(y) Fort Xxxx receives from Federal Express:
(z) written notification that (A) it has been construed that Producer
has failed in a material respect (as evidenced by multiple instances of failure)
to provide the level of support which meets the essential purpose or intent of
the support requirements set forth in the applicable license and/or maintenance
agreement ("License Agreement") between Federal Express and Producer, after the
exhaustion of reasonable cure periods; (B) the obligation of Producer to support
the applicable Systems in accordance with the License Agreement has been
transferred or assigned in violation of the assignment provisions set forth in
the License Agreement; (C) Producer has become insolvent, has made an assignment
for the benefit of creditors, has ceased to do business in the ordinary course
or any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any bankruptcy or other law for the
relief of debtors is instituted by or against Producer, or Producer no longer
offers support and/or maintenance for the applicable Systems as required by the
License Agreement (each a "Producer Default");
(aa) a copy of the written notice pursuant to which Federal
Express has previously notified Producer of such Producer
Default;
(bb) a written demand that the Deposit Materials be released
and delivered to Federal Express;
(cc) specific instructions from Federal Express for this deliv-
ery; and
(dd) a check payable to Fort Xxxx in the amount of one hundred
dollars ($100.00).
(ee) If the provisions of paragraph 4.1(a) are satisfied, Fort Xxxx
shall, within five (5) business days after receipt of the notification and check
specified in paragraph 4.1(a), deliver the Deposit Materials in accordance with
the applicable instructions.
(ff) If the provisions of paragraph 4.1(b) are met, Fort Xxxx shall,
within five (5) business days after receipt of all the documents specified in
paragraph 4.1(b), send by certified mail, return receipt requested, or by
Federal Express service, to Producer a photostatic copy of all such documents.
Producer shall have ten (10) days from the date on which Producer receives such
documents ("Objection Period") to notify Fort Xxxx by certified mail, return
receipt requested, or by Federal Express Service that a Release Condition has
not occurred or has been cured (the "Objection Notice") and to provide written
proof that a Release Condition has not occurred or has been cured. Producer
shall also request in such Objection Notice that the issue of Federal Express's
entitlement to a copy of the Deposit Materials be submitted to arbitration in
accordance with the following provisions (upon receipt of an Objection Notice,
Fort Xxxx shall forward a copy of such notice to Federal Express by certified
mail, return receipt requested, or by Federal Express service):
(gg) If Producer shall send an Objection Notice to Fort
Xxxx during the Objection Period, the matter shall be submitted to, and settled
by arbitration by, a panel of three (3) arbitrators chosen by the Atlanta
Regional Office of the American Arbitration Association in accordance with the
rules of the American Arbitration Association. The arbitrators shall apply
Tennessee law. At least one (1) arbitrator shall be reasonably familiar with the
computer software industry. The decision of the arbitrators shall be binding and
conclusive on all parties involved, and judgment upon their decision may be
entered in a court of competent jurisdiction. All costs of the arbitration
incurred by Fort Xxxx, including reasonable attorneys' fees and costs, shall be
paid by the party which does not prevail in the arbitration; provided, however,
if the arbitration is settled prior to a decision by the arbitrators, the
Producer and Federal Express shall pay all such costs.
(hh) Producer may, at any time prior to the commencement of
arbitration proceedings, notify Fort Xxxx that Producer has withdrawn the
Objection Notice. Upon receipt of any such notice from Producer, Fort Xxxx shall
reasonably promptly deliver (no later than five (5) business days) the Deposit
Materials to Federal Express in accordance with the instructions specified in
paragraph 4.1 (b)(iv).
(ii) If, at the end of the Objection Period, Fort Xxxx has not received
an Objection Notice from Producer, then Fort Xxxx shall reasonably promptly
deliver the Deposit Materials to Federal Express in accordance with the
instructions specified in paragraph 4.1(b)(iv).
(jj) Upon release of the Deposit Materials to Federal Express in
accordance with this Paragraph 4, Federal Express shall have a non-exclusive,
non-transferable, irrevocable perpetual right to use the Deposit Materials for
the sole purpose of internally maintaining the Systems for the continued
authorized use thereof as set forth in the License Agreement. Federal Express
shall be obligated to maintain the confidentiality of the released Deposit
Materials in accordance with the confidentiality requirement of the License
Agreement.
Delivery by Fort Xxxx to Producer. Fort Xxxx shall release and
deliver the Deposit Materials to Producer upon termination of this Agreement in
accordance with paragraph 7(a) hereof.
Indemnity. Except as contained in Paragraph 12 (a) of this
Agreement, Producer and Federal Express shall, jointly and severally,
indemnify and hold harmless Fort Xxxx and each of its directors,
officers, agents, employees and stockholders ("Fort Xxxx Indemnities")
absolutely and forever, from and against any and all claims, actions,
damages, suits, liabilities, obligations, costs, fees, charges, and any
other expenses whatsoever, including reasonable attorneys' fees and
costs, that may be asserted against any Fort Xxxx Indemnitee in
connection with this Agreement or the performance of Fort Xxxx or any
Fort Xxxx Indemnitee hereunder; provided, however, this indemnity shall
not apply to any liability caused by the negligence or willful misconduct
of any Fort Xxxx Indemnitee. Disputes and Interpleader.
(kk) Except as provided in Section 4(d)(i), in the event of any dispute
between Producer and/or Federal Express relating to delivery of the Deposit
Materials by Fort Xxxx or to any other matter arising out of this Agreement,
Fort Xxxx may submit the matter to any court of competent jurisdiction in an
interpleader or similar action. Any and all costs incurred by Fort Xxxx in
connection therewith, including reasonable attorneys' fees and costs, shall be
borne by Producer or Federal Express, whichever is the non-prevailing party.
(ll) Fort Xxxx shall perform any acts ordered by any court of competent
jurisdiction, without any liability or obligation to any party hereunder by
reason of such act.
Term and Renewal.
(mm) The initial term of this Agreement shall be one (1) year,
commencing on the date hereof (the "Initial Term"). This Agreement shall be
automatically extended for an additional term of one year ("Additional Term") at
the end of the Initial Term and at the end of each Additional Term hereunder
unless, on or before the end of the Initial Term or an Additional Term, as the
case may be, (i) Federal Express and Producer both notify Fort Xxxx that they
wish to terminate the Agreement at the end of such term or (ii) Federal Express
does not renew annual support/maintenance within one (1) year following the
expiration of the then most recent annual support/maintenance period, and
Federal Express or Producer notifies Fort Xxxx thereof.
(nn) In the event of termination of this Agreement by the joint
instruction of Federal Express and Producer in accordance with paragraph 7(a)
hereof, Federal Express or Producer shall pay all fees due Fort Xxxx up to the
date of termination and Fort Xxxx shall return to Producer all copies of the
Deposit Materials then in its possession.
(oo) At no time shall Fort Xxxx return the Deposit Materials to
Producer except as expressly provided in this Agreement.
Fees. Federal Express shall pay to Fort Xxxx the applicable
fees in accordance with Exhibit A as compensation for Fort Xxxx'x services under
this Agreement. The initialization fee is due upon receipt of the signed
contract and the annual maintenance fee is due upon receipt of the Deposit
Materials, and shall be paid in U.S. Dollars.
(pp) Payment. Fort Xxxx shall issue an invoice to Federal Express
following execution of this Agreement ("Initial Invoice"), on the commencement
of any Additional Term hereunder, and in connection with the performance of any
additional services hereunder. Payment is due within ten (10) days of receipt of
invoice. All fees and charges are exclusive of, and Federal Express or Producer
is responsible for the payment of, all sales, use and like taxes. Fort Xxxx
shall have no obligations under this Agreement until the Initial Invoice has
been paid in full by Federal Express.
(qq) Nonpayment. In the event of non-payment of any fees or charges
invoiced by Fort Xxxx, Fort Xxxx shall give notice of non-payment of any fee due
and payable hereunder to Federal Express and, in such an event, the Federal
Express shall have the right to pay the unpaid fee within ten (10) days after
receipt of notice from Fort Xxxx. If Federal Express fails to pay in full all
fees due during such ten (10) day period, Fort Xxxx shall give notice of
non-payment of any fee due and payable hereunder to Producer and, in such event,
Producer shall have the right to pay the unpaid fee within ten (10) days of
receipt of such notice from Fort Xxxx. Upon payment of the unpaid fee by either
the Producer or Federal Express, as the case may be, this Agreement shall
continue in full force and effect until the end of the applicable term. Failure
to pay the unpaid fee under this paragraph 8(b) by both Producer and Federal
Express shall result in termination of this Agreement and the return of the
Deposit Materials to Producer.
Ownership of Deposit Materials. The parties recognize and
acknowledge that ownership of the Deposit Materials shall remain with Producer
at all times.
Available Verification Services. Fort Xxxx will produce a file
directory listing for each piece of magnetic media up to three disks, tapes or
CDs and provide a copy to both the Producer and Federal Express within fifteen
(15) business days of receiving the Deposit Material. Fort Xxxx will provide
these listings without charge as long as the source code media is not created
using back-up software and the media is: a 4mm tape (DDSI) or 8mm tape (DDSI) in
AIX/Tar format, a 3.5" or 5.25" disk in MS-Dos format, a 3480 cartridge or 3490
cartridge in ASCII or EBCDIC languages, or a CD or 9 track round tape in ASCII
or EBCDIC languages. For any pieces of media above three, Federal Express may
request from Fort Xxxx a file directory for the fees set forth below:
In-house Level 1 Technical Verification (See Exhibit C): $50.00/hour
up to a maximum of $500.00
Verification, as described herein only, may also be conducted at the request of
Federal Express by an independent auditing company such as KPMG Peat Marwick's
Software Quality Center. Fort Xxxx shall obtain a price quotation from the
independent auditing company, and, at the written direction of Federal Express,
engage the company for its services. The independent auditing company will
invoice Federal Express for the documented cost of all such services, provided
such cost is not greater than the quotation received and approved in writing in
advance by Federal Express. Producer shall reasonably cooperate with Fort Xxxx
by providing its facilities, computer systems, and technical and support
personnel for technical verification whenever reasonably necessary. If requested
by Federal Express, Producer shall permit one employee of Federal Express to be
present at Producer's facility during any such verification of the Deposit
Materials.
Bankruptcy. Producer and Federal Express acknowledge that this
Agreement is an "agreement supplementary to" the License Agreement as
provided in Section 365 (n) of Xxxxx 00, Xxxxxx Xxxxxx Code (the
"Bankruptcy Code"). Producer acknowledges that if Producer as a debtor in
possession or a trustee in Bankruptcy in a case under the Bankruptcy Code
rejects the License Agreement or this Agreement, Federal Express may
elect to retain its rights under the License Agreement and this Agreement
as provided in Section 365 (n) of the Bankruptcy Code. Upon written
request of Federal Express to Producer or the Bankruptcy Trustee,
Producer or such Bankruptcy Trustee shall not interfere with the rights
of Federal Express as provided in the License Agreement and this
Agreement, including the right to obtain the Deposit Material from Fort
Xxxx. Miscellaneous.
(rr) Remedies. Except for actual fraud, negligence or intentional
misconduct, Fort Xxxx shall not be liable to Producer or to Federal Express for
any act, or failure to act, by Fort Xxxx in connection with this Agreement. Fort
Xxxx will not be liable for special, indirect, incidental or consequential
damages hereunder.
(ss) Natural Degeneration; Updated Version. In addition, the parties
acknowledge that as a result of the passage of time alone, the Deposit Materials
are susceptible to loss of quality ("Natural Degeneration"). It is further
acknowledged that Fort Xxxx shall have no liability or responsibility to any
person or entity for any Natural Degeneration. For the purpose of reducing the
risk of Natural Degeneration, Producer shall deliver to Fort Xxxx a new copy of
the Deposit Materials at least once every three years.
(tt) Permitted Reliance and Abstention. Fort Xxxx may rely and shall be
fully protected in acting or refraining from acting upon any notice or other
document believed by Fort Xxxx in good faith to be genuine and to have been
signed or presented by the proper person or entity. Fort Xxxx shall have no
duties or responsibilities except those expressly set forth herein.
(uu) Independent Contractor. Fort Xxxx is an independent
contractor, and is not an employee or agent of either the Producer or Federal
Express.
(vv) Amendments. This Agreement shall not be modified or
amended except by another agreement in writing executed by the parties hereto.
(ww) Entire Agreement. This Agreement, including all exhibits hereto,
supersedes all prior discussions, understandings and agreements between the
parties with respect to the matters contained herein, and constitutes the entire
agreement between the parties with respect to the matters contemplated herein.
All exhibits attached hereto are by this reference made a part of this Agreement
and are incorporated herein.
(xx) Counterparts; Governing Law. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement. This Agreement shall be construed and enforced in accordance with the
laws of the State of Tennessee.
(yy) Confidentiality. Fort Xxxx will hold and release the Deposit
Materials only in accordance with the terms and conditions hereof, and will
maintain the confidentiality of the Deposit Materials.
(zz) Notices. All notices, requests, demands or other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be delivered by hand or by Federal Express overnight delivery
service which provides for evidence of receipt, or mailed by certified mail,
return receipt requested, postage prepaid.
(aaa) If to Producer:
to the address listed on the signature page hereof
(bbb) If to Federal Express:
to the address listed on the signature page hereof
(ccc) If to Fort Xxxx:
Fort Xxxx Escrow Services, Inc.
0000 X Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Contract Administrator
Copy: Xxxxxxx Xxxxxxxxx, Sales Manager
If delivered personally or by Federal Express overnight delivery service, the
date on which the notice, request, instruction or document is delivered shall be
the date on which delivery is deemed to be made, and if delivered by mail, the
date on which such notice, request, instruction or document is received shall be
the date on which delivery is deemed to be made. Any party may change its
address for the purpose of this Agreement by notice in writing to the other
parties as provided herein.
(ddd) Survival. Paragraphs 4.1(f), 5, 6, 8, 9 and 11 shall
survive any termination of this Agreement.
(eee) No Waiver. No failure on the part of any party hereto to
exercise, and no delay in exercising any right, power or single or partial
exercise of any right, power or remedy by any party will preclude any other or
further exercise thereof or the exercise of any other right, power or remedy. No
express waiver or assent by any party hereto to any breach of or default in any
term or condition of this Agreement shall constitute a waiver of or an assent to
any succeeding breach of or default in the same or any other term or condition
hereof.
(fff) Assignment. This Agreement shall inure to the benefit of and be
binding upon each of the parties and their respective successors and assigns,
but neither the rights nor the duties of any party under this Agreement may be
assigned, transferred or delegated, without the prior written consent of the
other parties.
IN WITNESS WHEREOF each of the parties has caused its duly authorized
officer to execute this Agreement as of the date and year first above written.
Fort Xxxx Escrow Services, Inc.
0000X Xxxxxx Xxxxxx Phone: 0-000-000-0000
Xxxxxxxxx, Xxxxxxx 00000-0000 Fax: 0-000-000-0000
Attn: Contracts Administrator Copy: Xxxxxxx Xxxxxxxxx,
Sales Manager
By: Title:
Print Name:
Producer: Qualix Group, Inc.
By: Title:
Print Name:
Address:
Phone: Fax:
Federal Express Corporation
By: Title:
Print Name:
Address:
Phone: Fax:
EXHIBIT A
FEE SCHEDULE
Fees to be paid by Federal Express or Producer shall be as follows:
Initialization fee (one time only) $ 475
Surcharges: for significant modifications to this
Agreement $ 200
Annual maintenance/storage fee
includes two Deposit Material updates $ 800/product
includes two cubic feet of storage space (foreign $900)
International (Producer outside of U.S) -- $ 900/product
Additional Updates
(above two per year) $ 100
Additional Storage Space $ 150/cubic foot
Payable by Federal Express or Producer:
Due Upon Federal Express' or Producer's
Request for Release of Deposit Materials$100 for initial 2 hrs
$50/hour for
additional hours
initialization fee is due upon receipt of signed contract and the annual
maintenance fee is due upon receipt of Deposit Material, and shall be paid in
U.S. Dollars. After the Initial Term, fees shall be subject to their current
pricing, provided that such prices shall not increase by more than 3% per year.
EXHIBIT B
B1. Product Name:
Version #:
Prepared and Confirmed by:
Title: Date:
Signature:
Type of deposit:
____ Initial Deposit
____ Update Deposit to replace current deposits
____ Other (please describe)
Items Deposited:
Quantity Media Type Description of Material
A) _____
B) _____
C) _____
B2. Product Name:
Version #:
Prepared and Confirmed by:
Title: Date:
Signature:
Type of deposit:
____ Initial Deposit
____ Update Deposit to replace current deposits
____ Other (please describe)
Items Deposited:
Quantity Media Type Description of Material
A) _____
B) _____
C) _____
For Producer, I certify that the above described Deposit For Fort Xxxx, I
certify that the deposit inspection Materials have been transmitted to Fort
Xxxx: has been completed (any exceptions are noted above):
By: By:
Title: Title:
Date: Date:
Acknowledged:
Federal Express Corporation
By:
Title:
Date:
EXHIBIT C
IN-HOUSE LEVEL 1 TECHNICAL VERIFICATION
A. Comparative Inventory Report
A physical inventory of the escrow deposit is conducted. The contents
are compared to both our list of potential deposit materials and the
technology partner's deposit description.
B. File Directory
After the necessary updates are made and the deposit is complete, a
directory of all computer files generated and all software and hardware
required for this process is documented. The generated file directory
is then compared to the documentation of directory listings which is
furnished in the escrow deposit.
A report is issued to Federal Express outlining the Comparative Inventory Report
and File Directory Listing.
EXHIBIT D
FEDERAL EXPRESS REQUIREMENTS FOR ESCROW DEPOSIT
Federal Express requires the following materials to be supplied for the escrow
agreement involving your company. However, other materials may be a requisite of
this account. Consult your Federal Express contact with any questions. When
prepared, please ship these materials to Fort Xxxx Escrow Services in Atlanta,
GA (800-875-5669) to the attention of Xxxx XxXxxxxx. Thank you.
Your company name: Date:
Product name: Version number:
Two copies of the source code for each version of the licensed software,
on magnetic media, in the original programming code language
The source code media shall not be created using back-up software and the
source code media shall be: a 4mm tape (DDSI) or 8mm tape (DDSI) in AIX/Tar
format, a 3.5" or 5.25" disk in MS-DOS format, a 3480 cartridge or 3490
cartridge in ASCII or EBCDIC languages, or a CD or 9 track round tape in
ASCII or EBCDIC languages
Source code print out (on paper, microfilm, or CD-ROM)
All manuals necessary for operation (i.e., installation, operator, user)
Maintenance tools (test programs, program specification)
Proprietary or third party system utilities (compiler & assembler descrip-
tions)
Descriptions of the system/program generation
Necessary non-licensor proprietary software or a listing of such software
if licensor rights do not allow deposit in escrow
Menu and support programs and subroutine libraries in source and object
form
Compilation and execution procedures in human and machine readable form
(may be supplemented with a video explanation by programming personnel)
Names and phone numbers of key technical employees
All other necessary and available information that would assist Federal
Express in the reconstruction, maintenance or enhancement of the licensed
material
Please provide a listing of any required materials that cannot be provided to
Federal Express along with a reason for the omission of these materials:
1.
2.
3.
*Confidential portion has been omitted and filed separately with the Commission.
